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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Calvary Communications, Inc. ) File No. EB-02-PA-205
Owner of Antenna Structure # 1025371 ) NAL/Acct. No.
Pittsburgh, Pennsylvania ) FRN 0003-1842-56
Adopted: September 2, 2003 Released: September 4,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of ten thousand
dollars ($10,000) to Calvary Communications, Inc.
(``Calvary''), for repeated violation of Sections
17.4(g), 17.50 and 17.51(a) of the Commission's Rules
(``Rules'').1 The noted violations involve Calvary's
failure to post the antenna structure registration
(``ASR'') number at the captioned antenna structure, to
adequately paint the captioned antenna structure and to
exhibit all red obstruction lighting between sunset and
2. On July 25, 2002, the Commission's Philadelphia,
Pennsylvania, District Office (``Philadelphia Office'')
issued a Notice of Apparent Liability for Forfeiture
(``NAL'') to Calvary for a forfeiture in the amount of
fifteen thousand dollars ($15,000).2 Calvary filed its
response to the NAL on August 23, 2002.
3. Calvary owns an antenna structure, antenna structure
registration (``ASR'') number 1025371, located at 599
Bolton Street in Pittsburgh, Pennsylvania. The ASR for
that antenna structure indicates that the height of the
tower is approximately 125 meters above the ground and
that painting, top beacon lighting and mid-point
lighting are required. At 3:00 p.m. on May 7, 2002, an
agent from the Philadelphia Office inspected antenna
structure #1025371. During the inspection, the agent
observed that the tower's ASR number was not posted near
the base of the tower and that the tower's paint was
faded, flaking and partially concealed by unpainted
coaxial cables. At approximately 8:15 p.m. on both May
7 and 8, 2002, the agent returned to antenna structure
#1025371 and remained there until after sunset. On both
occasions, the agent observed that the tower's ASR
number was not posted near the base of the tower; that
the tower's paint was faded, flaking and partially
concealed by unpainted coaxial cables; and that the
tower's red obstruction lighting was extinguished at the
top and mid levels of the antenna structure.
4. On May 20, 2002, the Philadelphia Office issued a
Notice of Violation (``NOV'') to Calvary for the
violations observed on May 7 and 8, 2002. In its
response, filed on June 19, 2002, Calvary stated that a
lightning strike had caused the lighting outage at
antenna structure #1025371. Calvary further stated that
it had temporarily repaired the lighting outage and was
in the process of making permanent repairs.
Additionally, Calvary provided a copy of its contract
with Edmiston Tower, Inc., entered into after the NOV,
to paint antenna structure #1025371.
5. On July 25, 2002, the Philadelphia Office issued a NAL
for a forfeiture in the amount of $15,000 to Calvary.
The NAL alleged willful and repeated violation of
Sections 17.4(g) (failure to post the ASR number at
tower #1025371), 17.48(a) (failure to report known
lighting outage to the Federal Aviation Administration
at tower #1025371), 17.50 (failure to adequately paint
antenna structure at tower #1025371) and 17.51(a)
(failure to exhibit all red obstruction lighting between
sunset and sunrise at tower #1025371) of the Rules. In
its response, filed July 19, 2002, Calvary denies
violating Section 17.48(a) of the Rules. Calvary admits
violating Sections 17.4(g), 17.50 and 17.51(a) but
requests reduction of the proposed monetary forfeiture
to $5,000. Calvary explains that, before the lighting
outage, its automatic alarm system malfunctioned and
that, because it was making weekly visual checks of the
lighting during the failure of the automatic alarm
system, ``the tower lighting could not have been out for
a period of longer than seven days'' prior to the FCC
agent's inspection. Calvary also argues that it acted
in ``good faith'' by quickly correcting the
deficiencies,3 that it has ``an exemplary record of
compliance'' and that payment of the full forfeiture
amount would be ``a difficult burden'' for Calvary.
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),4
Section 1.80 of the Rules,5 and The Commission's
Forfeiture Policy Statement and Amendment of Section
1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Policy Statement''). In examining
Calvary's response, Section 503(b) of the Act requires
that the Commission take into account the nature,
circumstances, extent and gravity of the violation and,
with respect to the violator, the degree of culpability,
any history of prior offenses, ability to pay, and other
such matters as justice may require.6
7. Section 17.4(g) of the Rules requires posting a tower's
ASR number in a conspicuous place near the base of the
antenna structure. Section 17.50 provides that antenna
structures requiring painting shall be cleaned or
repainted as often as necessary to maintain good
visibility. Section 17.51(a) requires that all red
obstruction lighting be exhibited from sunset to
sunrise. On the basis of the FCC agent's observations
during his investigation and Calvary's response, we find
that Calvary repeatedly violated Sections 17.4(g), 17.50
and 17.51(a) of the Rules. 7
8. Section 503(b) of the Act gives the Commission
authority to assess a forfeiture penalty against any
person if the Commission determines that the person has
``willfully or repeatedly'' failed to comply with the
provisions of the Act or with any rule, regulation or
order issued by the Commission. In light of our
determination that Calvary's violations were repeated,
it is not necessary to determine whether they were also
9. Section 17.48(a) of the Rules requires tower owners to
immediately report known lighting outages to the Federal
Aviation Administration. Calvary asserts that it did
not know of the outage observed on May 7 and 8, 2002,
until it was notified by the Commission. In light of
this assertion, we find that Calvary did not violate
Section 17.48(a) of the Rules. We, therefore, will not
impose a forfeiture amount for violation of Section
10. Calvary's correction of its violations of Sections
17.4(g), 17.50 and 17.51(a) of the Rules does not
warrant a reduction of the proposed forfeiture on the
basis of ``good faith.'' As the Commission stated in
Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994),
``corrective action taken to come into compliance with
Commission rules or policy is expected, and does not
nullify or mitigate any prior forfeitures or
violations.'' 9 Calvary's actions before it was
notified of the outage also do not warrant any ``good
faith'' reduction. Calvary knew its automatic alarm
system was malfunctioning but did not arrange for
repairs until after the outage. Section 17.47(a)(1) of
the Rules10 required daily visual checks of the tower
lighting11 during the failure of the automatic alarm
system. Calvary, however, made only weekly checks.
11. Calvary's assertion that payment of the proposed
forfeiture amount would be a difficult financial burden
also does not justify a reduction in the forfeiture
amount. As explicitly stated in the NAL, we will not
consider reducing or canceling a forfeiture in response
to a claim of inability to pay unless the petitioner
submits: (1) federal tax returns for the most recent
three-year period; (2) financial statements prepared
according to generally accepted accounting practices
("GAAP"); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's
current financial status. We cannot consider Calvary's
inability to pay claim because Calvary did not provide
any financial documentation whatsoever. However, we do
find that Calvary has a history of overall compliance
and, accordingly, reduce the forfeiture amount to
12. We have examined Calvary's response to the NAL pursuant
to the statutory factors above, and in conjunction with
the Policy Statement as well. As a result of our
review, we conclude that Calvary repeatedly violated
Sections 17.4(g), 17.50 and 17.51(a) of the Rules and
that the appropriate forfeiture amount is $10,000.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED that, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and
1.80(f)(4) of the Rules,12 Calvary IS LIABLE FOR A
MONETARY FORFEITURE in the amount of ten thousand
dollars ($10,000) for failure to post the ASR number,
light and adequately paint the captioned antenna
structure, in repeated violation of Sections 17.4(g),
17.50 and 17.51(a) of the Rules.
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be
referred to the Department of Justice for collection
pursuant to Section 504(a) of the Act.13 Payment may be
made by mailing a check or similar instrument, payable
to the order of the Federal Communications Commission,
to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should
reference NAL/Acct. No. 200232400006 and FRN 0003-1842-
56. Requests for full payment under an installment plan
should be sent to: Chief, Revenue and Receivables Group,
445 12th Street, S.W., Washington, D.C. 20554.14
15. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by First Class and Certified Mail Return Receipt
Requested to Michael F. Morrone, Esq., Keller and
Heckman LLP, 1001 G Street, N.W., Suite 500 West,
Washington, D.C. 20001.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. §§ 17.4(g), 17.50 and 17.51(a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232400006 (Enf. Bur., Philadelphia Office, released July 25,
3 Calvary's response to the NAL indicates that Calvary
corrected the violations of Sections 17.4(g), 17.50 and 17.51(a)
of the Rules but does not indicate the exact dates of the
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 47 U.S.C. § 503(b)(2)(D).
7 As provided by 47 U.S.C. § 312(f)(2), a continuous violation
is ``repeated'' if it continues for more than one day. The
Conference Report for Section 312(f)(2) indicates that Congress
intended to apply this definition to Section 503 of the Act as
well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
8 Koke, Inc., 23 FCC 2d 191 (1970).
9 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
10 47 C.F.R. § 17.47(a)(1).
11 See, eg.,Crown Communications, Inc., 15 FCC Rcd 21937,
21939 (Enf. Bur. 2000).
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.